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Can a tribal gaming casino be liable?

A motorcyclist was catastrophically injured in an auto accident when hit by a drunk driver who had been at a tribal gambling casino and was given alcohol by its employees while obviously intoxicated. The medical bills alone were over a million dollars. The plaintiff was unable to bring a claim against the casino or its employees because they were entitled to sovereign immunity.

In Cook v. Avi Casino Enterprises, et al, (9th Cir. filed November 14, 2008) a majority of the court first reiterated that a tribal corporation is a citizen of the state where it has its principal place of business. Therefore it found that there was diversity of jurisdiction. However, it dismissed the casino on the basis of sovereign immunity. Simply put, “tribal sovereign immunity protects Indian tribes from suit absent express authorization by Congress or clear waiver by the tribe…This immunity applies to the tribe’s commercial as well as governmental activities.” Commercial includes gaming.

Further it dismissed the employees of the casino. The primary rule is that tribal immunity extends to tribal officials when acting in their official capacity and within the scope of their authority. In this case tribal immunity was extended from officials to tribal employees because the plaintiff, by suing the employees in their official capacity, was actually looking for recovery from the casino on the basis of vicarious liability.

The upshot was that the plaintiff did not have sufficient sources of funds from responsible defendants to be compensated for his injuries.